Kulyamba Aboriginal Corporation RNTBC v MRC Exploration Pty Ltd

[2020] NNTTA 17

NATIONAL NATIVE TITLE TRIBUNAL

Kulyamba Aboriginal Corporation RNTBC v MRC Exploration Pty Ltd and Another [2020] NNTTA 17 (20 February 2020)

Application No: WO2019/0868

IN THE MATTER of the Native Title Act 1993 (Cth)

- and -

IN THE MATTER of an inquiry into an expedited procedure objection application

Kulyamba Aboriginal Corporation RNTBC  (WCD2009/002)

(native title party)

- and -

MRC Exploration Pty Ltd

(grantee party)

- and -

State of Western Australia

(Government party)

DECISION TO DISMISS OBJECTION APPLICATION

Tribunal:	Helen Shurven, Member
Place:	Perth
Date:	20 February 2020

Catchwords:

Native title – future act – proposed grant of exploration licence – expedited procedure objection application – failure to comply with directions – objection application dismissed

Legislation:

Native Title Act 1993 (Cth) ss 29, 148(b)

Cases:

David Stock & Others on behalf of the Nyiyaparli People/Western Australia/Giralia Resources NL, [2000] NNTTA 333 (David Stock v Giralia)

Michael Daniel Teelow/Michael Page/Northern Territory [2001] NNTTA 107; 166 FLR 266 (Teelow v Page)

Thudgari People v State of Western Australia [2009] FCA 1334

Representative of the native title party:

Wayne Lapthorne

Representative of the grantee party: Matthew Clohessy, Emerald Tenement Services

Representatives of the Government party: Lauren Pike and Matthew Smith, Department of Mines, Industry Regulation and Safety

REASONS FOR DETERMINATION

1. On 20 September 2019, the State of Western Australia (State) gave notice, under s 29 of the Native Title Act 1993 (Cth) (the Act), of its intention to grant exploration licence E08/2963 (the licence) to MRC Exploration Australia Pty Ltd (MRC). The s 29 notice included a statement that the State considers the grant of the licence is an act attracting the expedited procedure under the Act.

2. On 23 September 2019, the Kulyamba Aboriginal Corporation RNTBC (KAC) lodged an objection with the National Native Title Tribunal (the Tribunal) against the inclusion of the expedited procedure statement. Kulyamba Aboriginal Corporation RNTBC holds native title in trust for the Thudgari People (see Thudgari People v State of Western Australia). The area of the proposed licence is located wholly within the Thudgari People’s determination area. 

3. The President of the Tribunal has directed me to constitute the Tribunal for the purposes of the inquiry in this matter as to whether or not the expedited procedure applies.

Relevant facts

1. On 21 October 2019, all parties were notified of the objection application and the inquiry process.  At the same time, directions were made requiring all parties to provide contentions and evidence for the conduct of the inquiry on or by specified dates.  KAC was directed to provide a statement of contentions and the evidence upon which it intends to rely, on or before 10 February 2020.

2. In the notification to all parties, they were asked to note that:

   if the applicant fails within a reasonable time to progress the application or comply with a direction of the Tribunal, the Tribunal may dismiss the application (emphasis added).

3. The State complied with their specified date, copying in all parties to their materials on 23 January 2020.  KAC did not provide any contentions or evidence by the due date, and has not made any request for an extension of time to do so. 

4. On 11 February 2020, the State wrote to the Tribunal and parties requesting this matter be dismissed due to KAC’s failure to comply with directions. The Tribunal wrote to all parties on 12 February 2020, inviting comments on the dismissal request by no later than close of business 18 February 2020. No response was received from KAC, MRC or the State.

Consideration of the dismissal

1. Under s 148(b) of the NTA the Tribunal may dismiss an objection application at any stage of the inquiry where the native title party fails within a reasonable time to proceed with the application or to comply with a direction by the Tribunal.

2. The Tribunal’s decision in Teelow v Page (at [13]) sets out the nature of the expedited procedure and the principles relevant to consideration of dismissal of an objection application for failure to comply with a direction. I have applied those principles in my consideration of this matter.

3. I am also mindful that KAC, as the applicant, should be taking steps to progress the objection application within a reasonable timeframe.  This was emphasised as early as the year 2000, in David Stock v Giralia, where the Hon E M Franklyn QC noted:

   If the parties do not wish to negotiate or there is no reasonable prospect of settlement, directions set by theTribunal giving dates for compliance are, in the absence of agreement in the interim, intended and required to be complied with (at page 7).

4. In the circumstances, I am satisfied that KAC has had sufficient opportunity to comply with my directions, or request an extension of time. Having regard to all of the facts and circumstances of this matter, I am satisfied that the objection application should be dismissed. Accordingly, it is not necessary for me to determine whether the grant of the licence is an act attracting the expedited procedure.

Determination

1. The expedited procedure objection application in relation to exploration licence E08/2963 is dismissed under s 148(b) of the Act.

Helen Shurven
Member
20 February 2020